With the cost of compliance with environmental regulations upon emissions and other arenas affecting transportation, you may be wondering, how far can the state and federal government go in regulating transportation; and if regulations differ from state to state and from the federal authority, how are transportation providers to stay in compliance with all the regulating governmental authorities? Some recent decisions have touched on some of these issues.

In the United States, there has always been a collaborative effort between the states and the federal government to regulate commerce and environmental concerns in order to avoid the potential of inconsistent requirements from state to state or region to region. However, the federal government retains the primary responsibility for regulating elements of mobile sources of pollution, those sources other than from stationary buildings, factories, manufacturing plants and the like,

under the Federal Clean Air Act. Generally, state regulations are pre-empted by this federal act. 42 USC § 7543. California, arguably a state with its own unique air quality issues that the Clean Air Act recognizes, has taken a leadership role in finding unique solutions to controlling its air pollution, and has been granted an exception to the Clean Air Act (CAA). The Clean Air Act waives California from preemption in certain scenarios, but requires that it procure Environmental Protection Agency (EPA) authorization. 42 USC § 7543. Other states can also seek such authorization or EPA “waivers” in the appropriate scenarios, by mirroring an existing California waiver. 42 USC § 7543. Moreover, if a state regulation is considered an “in-use” regulation, such as one involving carpool lanes, or excessive idling of vehicles, but does not actually set forth emission standards, the state regulation might survive the preemption argument.

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planning and careful execution. Indeed, insurers who do not fully understand how the defense is used in litigation can unwittingly make it unavailable to their trial counsel. Worse yet, insurers who mismanage their efforts to seek legal advice can actually hurt their cause by opening doors to evidence a skilled plaintiff’s attorney can use to convince a jury that the insurer acted unreasonably. This article therefore is designed to provide a practical guide for both seeking legal advice in connection with insurance claims and effectively using the advice of counsel defense in claims-related bad faith litigation.

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